“We’ve appointed an external consultant who does all our fire safety” – is that all Boards need to do to be legally compliant on fire safety?

There’s been a real emphasis in recent years on Board oversight of Health & Safety - setting the health & safety culture, proactively monitoring health & safety performance, and seeking to integrate health & safety consideration into all aspects of leadership and decision-making. 

However, board approaches to fire safety can often be less proactive, with many working on the assumption that their duties have been discharged simply by ensuring a suitable specialist fire safety consultant or fire safety risk assessor has been appointed.

Specialist fire safety lawyer, James Muller, discusses what obligations the law actually places on companies and Board Directors to oversee fire safety within their business. 

Non-delegable duties of Companies

In any workplace, the employing company is the “Responsible Person” - Fire safety duties who is the Responsible Person? | Weightmans  (NB the term is often erroneously used to reference the individual nominated to have responsibility for fire safety within a company, but that is not its correct legal usage). 

The company owes duties under the Regulatory Reform (Fire Safety) Order 2005 (“RRO”) to take such general fire precautions as will ensure - so far as is reasonably practicable - the safety of all employees, and to take reasonable precautions to ensure that the premises are safe for non-employees. Another key duty imposed by the RRO is the requirement that the company conducts, records and regularly reviews a fire risk assessment. The RRO also imposes numerous other more specific duties on companies with regards to fire safety. 

Breaches of the RRO are criminal in nature and can result in criminal prosecutions and significant fines for companies. 

Duties owed by the Responsible Person are non-delegable – the duties themselves cannot be delegated away by any contract, appointment, agreement or conduct. Of course, it may well be necessary for companies to get other people or organisations to carrying out specific tasks required for the discharge of those duties (eg fixing fire alarms, carrying out fire risk assessments, installing compartmentation).However, the workplace employer, being the Responsible Person, retains ultimate responsibility for ensuring that those are carried out, and are carried out to the required standard. 

That means, whether a board is having those tasks carried out internally or by an external person/company, they need to maintain effective oversight so they can ensure that the duty is complied with. 

In the recent Beechmere prosecution (a large complex fire safety prosecution in which Weightmans’ client was acquitted of all charges), the Responsible Person was prosecuted for alleged failings relating to risk assessment, maintenance and control of contractors, despite the fact that charges were also being brought against the external fire risk assessors and the facilities management contractor contracted to undertake these. 

Personal liability of Board Directors? 

Although it is the company that is the Responsible Person and therefore owes the primary duties, Board Directors themselves should particularly note criminal liability can also attach to any (statutory) Director, Company Secretary or equivalent officer who consents or connives in a breach, or where a breach is attributable to their neglect. Such liability can carry up to two years’ imprisonment. 

Appointment of Specialist Fire Safety Consultants and Risk Assessors

Nothing in this article is intended to dissuade companies from using external fire safety consultants or risk assessors. Indeed, in the majority of cases companies will not have the necessary expertise in-house. 

However, what is required is a hand-on and collaborative approach with any such consultant/assessor, rather than an approach which simply leaves it to them. 

Competence 

Companies need to ensure that any specialist fire safety risk assessor or consultant is competent. Competence is the combination of training, skills, knowledge and experience required to undertake the job – for larger or longer-term work you should also consider their organisational competence and capacity to undertake the work with sufficient thoroughness. Their ability to respond to and meet your demands within required time frames should also be a consideration.  

Despite the introduction of a formal Fire Safety Risk Assessors Register, boards should note that presence on the register does not itself denote competence. It should also be borne in mind there is not one single level or standard of competence, and that a huge difference between competence required to review a fire risk assessment for a single floor office workspace compared to fire engineering advice on design or renovation of a hotel, care home, hospital or other complex multi-occupancy or sleeping-risk building. 

Assessment of competence is also not something that only takes place once and then forgotten about. If there is any long-term ongoing or repeat engagement of a contractor, companies need to ensure they review their competency assessments regularly, and they respond properly to any concerns raised or anything that ought to lead them to question their competence.

Scoping 

Another critical aspect when using such specialist external contractors is to agree in detail the exact scope of works being undertaken, and crucially what the limits of that work are. This scope should be clearly recorded so it is mutually understood by both parties, and also so it can be referred back to as evidence if needed. Some things you may want to consider covering, include (but are not limited to): 

Is this an intrusive or unintrusive assessment (or a type, 1, 2, 3 or 4 assessment)? 

• Is a full compartment survey being undertaken? 

• Has a sampling approach been taken to things like fire doors or compartmentation? 

• What assumptions have been made, or what information provided by the company or a third party is being relied upon (on the assumption it is correct)? 

• Is the service a one-off, or is there ongoing support?  

• If there is an ongoing service for risk assessment, who has responsibility for assessing if there has been a significant change in circumstances, or there is reason to suspect that the fire risk assessment is no longer valid, such that a review of the risk assessment is required? 

• Does the fire risk assessor have any responsibility for actions to close our remedial actions, or does their role stop once they are identified in the risk assessment report? 

• How will the contractor report on what it has done, such that the Responsible Person can be satisfied that all legal duties have been met? 

Leadership of Fire Safety management within the Business

The RRO imposes a duty on Companies to have “such arrangements as are appropriate… for the effective planning, organisation, control, monitoring and review of the preventive and protective measures.” This requirement goes way beyond simply appointing a fire risk assessor. 

Boards should ensure the business has a fire safety policy and fire safety management system which specifies who within the business is responsible for taking, overseeing or checking the required actions. Even if the vast majority of fire safety functions are contracted out to consultants, somebody within the business still needs to “own” fire safety, and ensure that these actions are overseen and co-ordinated. 

Boards will also need to ensure fire safety links in effectively with other parts of the business that could either affect the business’s fire safety compliance, or be affected by it. Changes in, for example, workplace processes, building layout, and customer numbers or type, even if temporary, could have a significant impact on fire safety. 

Boards themselves should ensure there is effective oversight and performance monitoring of fire safety within the business, and any fire safety issues are addressed properly and within a reasonable time frame. 

Most importantly, Board Directors need to build a culture which promotes effective fire safety management, and does not tolerate fire safety non-compliance or treat fire safety as an expense to be reduced so far as possible.